Allahabad High Court
Inderpal And Etc. vs State Of U.P. on 10 January, 2002
Equivalent citations: 2002CRILJ2187
Author: J.C. Gupta
Bench: J.C. Gupta, Imtiyaz Murtaza
JUDGMENT J.C. Gupta, J.
1. All the seven appellants, above named, have been convicted and sentenced to imprisonment for life under Section 302 read with Section 149 I.P.C. They have been further sentenced to undergo six months R.I. each under Section 323 read with 149 I.P.C. Appellants MewaLal, PuttiLal, Inderpal, Narendra Bahadur Singh, Lallu Singh and Shiv Narain alias Patarwar have been sentenced further to two years R.I. each under Section 148 I.P.C. while appellant Babu Ram appellant has been sentenced to one year R.I. under Section 147 I.P.C. All the sentences have been ordered to run concurrently.
2. In an incident which occurred at the house of SheoLal in village Kachura within the area of police station Narwal, Babu Singh was killed while Bhikam Singh, P.W.3, Bal Kishan Singh, Smt. Kusma P.W. 5. Badalu and Ram Nath sustained injuries. First information report of the said incident was lodged at police station Narwal on the same night at 10.30 p.m. by injured Bhikam Singh P.W. 3 wherein all the appellants were nominated as assailants. Inderpal and PuttiLal were alleged to be having Kulhari, Babu Ram a Lathi, Narendra Bahadur Singh and Lallu Singh Guns and Shiv Narain and MewaLal Pharsa. According to the prosecution case at the time of incident in question the marriage party of the daughter of SheoLal had arrived at the door of SheoLal. Deceased Babu Singh and his brother injured Bhikam Singh had also gone to SheoLal's house to attend the marriage. Dwarachar was being performed in front of the house of SheoLal. Chhote Singh, P.W.4 and several other persons had assembled at the door of SheoLal to receive the Baratis, Lighted petromax were hanging at the door as well as inside the house of SheoLal. At about 8.15 to 8.30 p.m. the present appellants with their respective weapons along with three unknown persons who were having Pharsa and Spear came at the door of SheoLal from southern side. Finding Babu Singh deceased there PuttiLal accused shouted that he be not spared whereupon accused Lallu Singh and Narendra Bahadur Singh fired in air from their Guns to scare away the persons assembled there. On account of this firing the Baratis started running here and there. Lallu Singh and Narendra Bahadur Singh then caught hold of Bhikam Singh P.W. 3 and Babu Ram and three unknown persons started assaulting him with hands, fists and lathi. Bhikam Singh tried to get rid of their clutches but in vain. PuttiLal asked other persons to deal with Babu Singh first. Hearing this challenge, Babu Singh ran itiside the house of SheoLal to save his life but accused Inderpal, MewaLal, Shiv Narain chased him and they also entered into the house of SheoLal. Narendra Bahadur Singh and Lallu Singh accused left Bhikam Singh and they also followed their companions and entered into the house of SheoLal. Chhotey Singh, P.W.4 Ram Nath, Badlu and SheoLal requested the accused persons to spare Babu Singh and others but they did not listen. Inside the house, accused MewaLal asked the inmates of house to leave the place else they would be killed. The wife of SheoLal and his daughter Kusma P.W. 5 also requested the accused persons not to disturb the marriage function but to no effect. MewalalLal snatched the gun from Narendra Bahadur Singh and threatened the wife and daughter of SheoLal and they were also assaulted. The other accused and three unknown persons then apprehended Babu Singh in the southern court yard of Sheolal's house, fell him down and started assaulting on his neck with Kulhari and pharsa. After causing injuries to Babu Singh all the assailants ran away with their respective weapons towards west of village Kachura.
3. Shri Suraj Prasad Shukla was the station officer of police station Narwal. Case was registered in his presence. He took up the investigation and directed Sub Inspector Jasbir Singh to go to the place of occurrence. He then interrogated first informant Bhikam Singh and then he himself proceeded to the place of occurrence. Inquest was held by Sub Inspector Yadunath Singh, P.W. 2 who had accompanied Shri Shukla. Dead body of BabuLal was then sent for post-mortem examination.
4. P.W.7 Dr. R.K. Gupta conducted autopsy on the dead body of BabuLal on 10-2-1977 at 3.30 p.m. and following ante-mortem injuries were found:
1. Lacerated wound on the left side chest entering from the angle of mouth towards the angle of mandible, measuring 13cm x 4 cm. x bone deep, underlying mandible fractured.
2. Lacerated wound on the front of neck at the level of sterno mastoid, muscles on both sides transversely cut measuring 14 cm x 6 cm. x bone deep, underlying structures are cut. Trachea, oesophagus, neck vessels are cut. Underlying vertebra (C2) was fractured.
3. Lacerated wound on front of neck, 2 cm. below injury No. 2 measuring 11 cm. x 3 cm. x muscle deep.
4. Bruise over the front side shoulder measuring 4 cm. x 1/2cm.
5. Bruise on the back of left elbow at the level of lower end of humerous measuring 3 cm. X 1 cm.
5. In the opinion of the doctor cause of death was shock and hemorrhage as a result of ante-mortem injuries. Post-mortem report is Ex.Ka.38.
6. Dr. Hari Om Prasad Jha, P.W.6 medically examined Bal Krishna Singh, Badloo, Smt. Kushma and Bhikam Singh on 8-2-1977 between 4.10 p.m. to 6 p.m. and the doctor found blunt object injuries on the aforesaid persons.
7. The Investigating Officer on reaching place of occurrence inspected the site and took into possession blood stained and simple earth through memo Ex. Ka39. He also took into possession blood stained cloths from the dead body of deceased through memo Ex. Ka 14. Witnesses were also interrogated. SheoLal produced four petromax, which according to prosecution case were throwing light at the time of occurrence inside and outside the house. The Investigating Officer examined those lanterns and found them in working order. Three empty cartridges Exs. 1 to 3 were also taken into possession through memo Ex. Ka 42. Site plan Ex. Ka 43 was prepared and search for accused persons was made but they were not traceable. Accused Narendra Bahadur Singh and Lallu Singh surrendered themselves before C.M.M. Kanpur Nagar alongwith their licensed gun Exs.4 and 9. By the order of C.M.M. the said guns were sealed and deposited in Malkhana. Blood stained articles were sent for chemical examination. After completing investigation charge-sheet Ex.Ka 52 was submitted against accused persons. The guns of accused Narendra Bahadur Singh and Lallu Singh alongwith empty cartridges were sent to ballistic expert. Shri Badul Rai PW 9 stated before the trial Court that empty cartridges Ex. 1 and 2 were fired with licensed gun No. 3106(Ex.9) and cartridges Ex.3 had no sufficient mark for comparison. Ballistic report is Ex. Ka 53. Human blood was found on the cloth of the deceased and sample of earth.
8. Before the trial Court prosecution examined as many as 9 witnesses, of whom P.W.3 Bhikam Singh, P.W.4 Chhote, P.W.5 Smt. Kusma Devi were witnesses of fact (P.Ws. 3 and 5 being injured witnesses)
9. P.W. 1 Sarfaraj Hussain was Head Moharrir who prepared Check F.I.R. and registered the case in the general diary. P.W.2 Yadunath Singh, Sub Inspector held inquest proceedings P.W. 6 Dr. Hari Om Prasad Jha was the Medical Officer who medically examined injured persons and proved their injury reports. P.W. 7 Dr. R.K. Gupta conducted autopsy. P.W. 8 Station Officer Surya Prasad Shukla was the Investigating Officer and P.W. 9 was Ballistic Expert.
10. The case of defence was of total denial and it was suggested that an armed dacoity was committed in the house of SheoLal at the time of marriage of his daughter wherein Babu Singh was killed. They examined D.W. 1 Kanhai in support of this suggestion.
11. The learned Sessions Judge on appraisal of evidence and consideration of facts and circumstances came to the conclusion that the prosecution has succeeded in proving its case beyond reasonable doubt against all the accused persons who are now appellants before this Court.
12. Before we proceed further it may be pertinent to mention here that appellant MewaLal of criminal appeal No. 626 of 1980 was reported to have died during pendency of appeal and by the order dated 31-3-2000 his appeal has been ordered to have abated.
13. We have heard Shri G.S. Chaturvedi, Sr. Advocate for the appellants in both the appeals and the learned A.G.A. for the State.
14. The factum of death of Babu Singh on account of ante-mortem injuries has neither been disputed nor challenged before us, which fact is also otherwise fully established from the eye-witness account and the evidence of Dr. R.K. Gupta P.W. 7 who had conducted autopsy and prepared post-mortem report Ex. Ka 38. It also cannot be doubted that in the same incident wherein Babu Singh was killed, P.W. 3 Bhikam Singh, P.W. 5 Smt. Kusma Devi, Bal Krishna, Badloo and Ram Nath sustained injuries at the hands of assailants. Injury reports have been duly proved by Dr. Hari Om Prasad Jha, P.W.6.
15. It may be relevant to mention here that Dr. R.K. Gupta, P.W. 7 was cross-examined in the trial Court with a view to create a doubt if ante-mortem injuries could be the result of the use of sharp edged weapons, seemingly on the ground that the ante-mortem injuries in the post-mortem report were described by Dr. Gupta as lacerated wounds. The learned Sessions Judge has rightly concluded that a close examination of the ante-mortem injuries leaves no room of doubt that they were the result of some sharp edged weapons. Under injury No. 1 mandible was fractured and the trachea, oesophagus, neck vessels were all found cut. Dr. Gupta in his deposition before the trial Court further admitted that he agreed with the opinion of Modi that incised wounds are caused by sharp edged and cutting weapons and he clarified that injury No.2 is a typical incised wound with lacerated margins, meaning thereby that the edges of the cutting weapon which was used in causing that injury were not very sharp. Injury Nos. 1,2 and 3 have sufficient degree of gaping which clearly suggested that the incised wounds with lacerated margins were caused on the deceased. Dr. Gupta specifically admitted that cutting of vessels was not possible from a blunt object. Before us Shri Gopal Chaturvedi, learned counsel for the appellants has not disputed that the ante-mortem injuries could be the result of cutting weapons. Thus we find that there is no conflict between medical evidence and ocular testimony of witnesses.
16. Time and place of occurrence have not been seriously disputed before us, rather it was urged by learned counsel for the appellants that as per defence case an armed dacoity was committed in the house of SheoLal when marriage party of SheoLal's daughter had just arrived at the door of SheoLal and in that dacoity miscreants committed the murder of Babu Singh and caused injuries to others.
17. To prove the story, the prosecution has relied upon the evidence of three eyewitnesses, namely, P.W. 3 Bhikam Singh, P.W. 4 Chhote Singh and P.W. 5 Smt. Kusma and other corroborative evidence. We will first deal with the evidence of eye-witnesses.
18. P.W. 3 Bhikam Singh is brother of deceased Babu Singh and since he himself sustained injuries in the same incident, his presence at the time of occurrence cannot be doubted. He is the author of first information report Ex.Ka 1, which was lodged promptly at the police station in the same night at 10.30 p.m. This witness has stated the entire facts leading to the occurrence including motive part.
19. P.W.4 Chhote Singh is yet another eye- witness. According to him at the time of occurrence he had gone to attend the marriage of SheoLal's daughter and was present at his door to welcome the marriage party. This witness has given a vivid account of the incident.
20. P.W. 5 Smt. Kusma is the daughter of SheoLal. She was present in the house in connection with the marriage of her younger sister Rajan Devi. She has also stated that at the time of incident marriage party had arrived and ceremony of Dwarachar was being performed. Gas lanterns were throwing light in and outside the house. She has stated of the incident which occurred inside the house and she herself received injuries at the hands of assailants. Her presence inside the house thus cannot be doubted.
21. We now proceed to examine various submissions made by the learned counsel for the appellants and the evidence on record to find out if prosecution has succeeded in establishing its case against the appellant beyond reasonable doubt.
22. We shall first deal with the motive part. It was suggested from the prosecution side that deceased Babu Singh was an active member of Congress Party and supported the Congress candidate against Shri Upendra Nath Dixit. Ex M.L.A.' of Bhartlya Kranti Dal in the assembly elections held in the year 1969 and 1974. Shri Dixit and his party men were having a grudge against Babu Singh deceased. It is alleged that, all the accused persons belonged to the party of Shri Dixit. The prosecution has also brought on record an application (Ex. Ka 25) which deceased Babu Singh had moved to the Chief Minister. In this application Babu Singh deceased levelled serious charges against Shri Dixit. He also named Narendra Bahadur Singh, Lallu Yadava, Babu Ram and PuttiLal the present appellants alleging danger to his life at their hands.
23. The other motive alleged is that the deceased Babu Singh was a witness in a case under Section 399/402 I.P.C. against accu-ssed MewaLal. From the own documents filed in defence it is indisputable that Babu Singh was a witness for prosecution against appellant MewaLal in crime No. 2457 of 1978. Bhikam Singh P.W. 3 has also stated that accused PuttiLal and Patrawal were wanted as accused persons in another case under Section 399/402 I.P.C. and deceased Babu singh was trying to get them arrested. This part of his statement was not assailed in cross-examination.
24. The third motive suggested by prosecution is that at the time of occurrence, proceedings under Section 107/116 Cr.P.C. were pending between Babu Singh deceased. Bhikam Singh and ShyamLal on one side and accused Narendra Bahadur Singh, Lallu Singh, PuttiLal and Babu Ram on the other side. This allegation has been substantiated from the police challan reports whose copies Ex. Ka 66 and Ka 67 have been brought on record from prosecution side. Factum of pendency of these proceedings was also not disputed by accused persons rather this fact is admitted to them.
25. From the oral and documentary evidence it is thus established that enmity was existing between accused persons and deceased and his brother Bhikam Singh P.W. 3. It was argued by appellant's counsel that the motive suggested by the prosecution was not so strong as to impel the accused persons to select the occasion of marriage of SheoLal's daughter for carrying out: their plans. No immediate motive of any kind whatsoever has been alleged or proved for showing that, there was an extreme urgency of eliminating the deceased and it was a case of now or never. It is well known that motive is a thing which is primarily known only to the accused and evidence regarding existence of immediate motive which operated in the mind of the accused is very often not within the reach of others. The manner in which the culprits act to attain a particular object depends upon the way in which their minds work at the moment or the way in which they set out their plan. Where direct evidence is available to the prosecution, the absence of evidence regarding immediate motive will be of no significance. Where the Court finds the direct evidence to be reliable and trustworthy it can safely base conviction upon that evidence though the prosecution may not have succeeded in bringing on record immediate motive which called for the killing of the deceased at a particular place and time. Therefore, in the present case failure of the prosecution to explain the conduct of the accused persons as to why they selected the particular place and time for carrying out their plan when Dwarachar ceremony was being held at the door of SheoLal on arrival of marriage party of his daughter will not weaken the prosecution case nor direct evidence adduced in the case can be brushed aside on this seeming improbability, if the same is otherwise found reliable.
26. Now we procedd to examine the evidence of three witnesses which prosecution produced before the trial Court as witnesses of fact. The case of the prosecution was that Babu Singh deceased was done to death in the southern Court yard inside the house of SheoLal. There is reliable evidence on record to establish that Babu Singh had gone to attend the marriage ceremony of the daughter of SheoLal. D.W. 1 Kanhai also admitted that marriage of daughter of SheoLal was to be performed on the night of the occurrence and marriage party had arrived at SheoLal's door. He also admitted presence of Babu Singh deceased at the door of SheoLal and the fact that he was done to death inside the house of SheoLal in southern Court yard at the time alleged by the prosecution. It is also in the evidence of prosecution witnesses that at the time of Dwarachar ceremony P.W. 3 Bhikam Singh was standing at the door of SheoLal. P.W. 4 Chhote Singh had reached SheoLal's house at about 7.30 p.m. much earlier than arrival of deceased Babu Singh and his brother Bhikam Singh P.W. 3. Chhote Singh is totally an independent witness. He has also stated like Bhikam Singh P.W. 3 that at the time of Dwarachar deceased was standing at the door of SheoLal when all the accused persons came there and challenged him and when the deceased entered into the house of SheoLal in order to save his life, all the accused persons chased him and caught hold of him inside the inner Court yard and killed him there. Smt. Kusma P.W. 5 is the own daughter of SheoLal. Undisputedly her younger sister's marriage was being performed on the day of occurrence. Her presence in the house was, therefore, most natural and probable. In Court she stated that when Dwarachar was being held she alongwith her mother and other ladies was sitting in the Court yard under the 'Mandap' and was making arrangement for water to be served to the 'Baraties'. Suddenly Babu Singh deceased entered into the house raising cries and he attempted to conceal himself and made his entry into the inner Court yard of the house but PuttiLal, Inder Pal, Babu Ram also entered into the Court yard and thereafter Narendra Bahadur Singh, Lallu Singh, Patarwal and MewaLal joined them alongwith 2-3 unknown miscreants. PuttiLal and Inder Pal were having axe, Babu Ram a Lathi, Narendra Bahadur Singh and Lallu Singh guns and shiv Narain and MewaLal pharsa, while unknown persons were also having 'Pharsa' and 'Ballam'. They caught hold of Babu Singh in southern Court yard. When she and her mother tried to save him and requested accused persons not to spoil marriage of her sister, they were also assaulted. She further stated of the presence of Bhikam Singh, P.W. 3, her father SheoLal, Chhote Singh P.W.4, her uncle Ram Nath and Bal Krishna. She was also medically examined and injuries on her person were noticed by the medical officer. She was cross-examined at length but she withstood the test of cross-examination and nothing could come out in her evidence as to discredit her. Bhikam Singh, P.W. 3 is also an injured witness. Evidence of Smt. Kusma and Bhikam Singh further gets corroboration from the evidence of P.W. 4 Chhote Singh and the medical evidence on record. After going through their evidence carefully we could find no good reason to discard their testimony which in our opinion is natural, reliable and trustworthy.
27. As far as source of light is concerned, right from the first information report it has been stated that Gas lanterns were throwing light inside and outside the house of SheoLal. The fact that at the time of incident, marriage party of Sheo lal's daughter had arrived at the door of SheoLal was not assailed by the defence, rather this fact was admitted to the accused persons and their witness D.W.I Kanhai. The Investigating Officer also examined four petromax lanterns and found them in working condition as is evident also from the memo Ex Ka 41, D.W.I Kanhai has also admitted, of the presence of petromax light both inside and outside the house of SheoLal at the time when marriage party had arrived there. As at the time of occurrence marriage party had arrived at the door of SheoLal on the occasion of the marriage of his daughter, presence of petromax lanterns was most natural. Before us learned counsel for the appellants has also not disputed presence of light on the occasion of marriage of Sheo Lal's daughter. It is also not disputed that all the accused persons were known to the witnesses from before the incident. Therefore, there could not be any difficulty for the witnesses in identifying the assailants of Babu Singh.
28. Learned counsel for the appellants submitted before the Court that the manner of incident as deposed by P.W. 3 Bhikam Singh and P.W. 4 Chhote Singh supports the defence suggestion that an armed dacoity was committed at the house of SheoLal. He argued that had the accused persons come with a pre-plan to commit the murder of Babu Singh, they would have straight away killed Babu Singh outside the house by making use of fire arms. Though Babu Singh was found by them outside the house yet he was not attacked there. He submitted that the circumstances appearing in the case support the evidence of D.W. 1 Kanhai that about 14-15 dacoits arrived at the door of SheoLal when Dwarachar ceremony was being held. The dacoits were armed with guns, pistol and Pharsa. According to this witness Babu Singh was standing at the door and he put resistance when the dacoits wanted to make entry in the house whereupon one of the dacoits assaulted him with lathi. Babu Singh then ran inside into the house and there he was killed by the dacolts. We have gone through the evidence of D.W. 1 Kanhai and to us he appears to be a got up witness only with a view to support the accused persons. He does not appear to be a truthful witness. According to him in the incident of dacoity besides Babu Singh only Ram Nath, brother of SheoLal and Badloo brother-in-law of SheoLal were assaulted by the dacoits. He could not explain how and in what manner Smt. Kusma. Bhikam Singh and others reveived injuries. Further it does not sound to reason that SheoLal and his family members for no rhyme or reason would have agreed to change a case of dacoity to a simple case of murder. According to D.W. 1 Kanhai dacoits committed loot and decamped with jewellery and clothes of the women folk. If it was so it, is not conceivable that SheoLal would not have reported the matter to police that the dacoits have looted his jewellery and ornaments. He could not have concealed this fact because in case of any recovery of any looted articles he would have been at a total loss because in that event he would not have been in a position to get them back. It has also come in the evidence that when the investigating officer visited the scene of occurrence he did not find any signs of commission of dacoity. Both Smt. Kusma and Chhote Singh have also categorically denied commission of dacoity. Undisputedly murder of Babu Singh was committed inside the house in southern Court yard and the manner in which injuries were caused to him clearly indicates that the murder was committed in a callous and premeditated manner inasmuch a number of incised injuries were caused only on neck region of the deceased. If Babu Singh had put resistance to the advancing dacoits and the dacoits were armed with fire arms he would have been easily done to death outside the house of SheoLal itself. Further if about 14 15 dacoits had arrived at the door of SheoLal and had also challenged persons present there, it is not easy to swallow that Babu Singh would enter into the house of SheoLal instead of running away from the door of ShivLal. Why the dacoits caused only simple injuries to all others including SheoLal, his wife and daughter Smt. Kusma and selected to kill Babu Singh alone is not understandable. We, therefore, find no force in the submission of learned counsel for the appellants that as a matter of fact an armed dacoity was committed at the house of SheoLal as suggested by defence and deposed to by Kanhai D.W. 1. We have no hesitation in rejecting the evidence of defence witness Kanhai and hold that the incident had occurred in the manner as alleged by the prosecution.
29. Learned counsel for the appellantLald much stress in on his submission that there was a considerable doubt that the first information report of the present case was lodged at the time it purported to have been made. According to the prosecution case written first information report was registered at police station Narwal in the same night at 10.30 p.m. The distance of police station from the place of occurrence was two miles. P.W. 3 Bhikam Singh is the first informant. He has stated that after when the accused persons had left the scene of occurrence, he got the report scribed by Satpal and thereafter he went to police station Narwal alongwith Chhote Singh and JiyaLal. The report was handed over to Head Constable. P.W. 1 Sarfaraj Hussain was posted as Head Moharrir. He testified that on 7-2-1977 at 10.30 p.m. Bhikam produced before him written report on the basis of which he prepared Chick F.I.R. Ex.Ka 1 and registered the case at SI. No. 33 in the general diary whose copy has been proved as Ex. Ka 2. He has further deposed in his statement before the Court that on the same night station officer S.P. Shukla had left the police station from the place of occurrence through G.D. No. 36 whose copy has been proved as Ex.Ka 3. Inquest was held in the night itself by Sub Inspector Yadunath Singh under the supervision of station officer. P.W. 1 Head Constable Sarfaraj Hussain has further stated that special report of the case was duly sent to superior officers. This part of his statement has not been assailed in cross examination. Learned counsel for the appellants invited the attention of the Court to that part of the statement of P.W. 3 Bhikam Singh wherein he stated that on the night of occurrence he remained at the door of SheoLal upto 5-6 a.m. in the morning and then he went to the police station. Learned counsel for the appellants had tried to make capital out of this portion of Bhikam Singh's statement and submitted that in view of this admission there was no occasion of the first information report having come into existence at 10.30 in the preceding night. Though at the first glance this submission may look to be somewhat convincing but on a careful examination of his entire statement and on consideration of the circumstances of the case we find no force therein. It has been stated clearly by P.W. 3 Bhikam Singh that soon after the accused persons had fled away he got the report written by Satpal and then he alongwith Chhote,Singh and JiyaLal immediately went to police station Narwal. He handed over the written report to head Moharrir at the police station in the same night, on the basis of which the Head Moharrir prepared report and thereafter copy of check report was supplied to him. It further appears from the evidence on record that Bhikam Singh then came back to the scene of occurrence in the night itself. Station Officer S.P. Shukla P.W. 8 has also stated that he reached the place of occurrence in the night itself. It has also come in the evidence that when the station officer went to the place of occurrence he carried with him copy of F.I.R. and the copy of entry made in the G.D. whereby the case was registered at the police station against the accused persons. Shri Shukla has further deposed that he got sent Injured including Bhikam Singh to medical examination this also indicates that Bhikam Singh had come back to the place of occurrence after registration of his F.I.R. The above referred to statement may thus be with regard to his going to police station again after his arrival at the scene of occurrence from the police station after lodging the F.I.R.
30. It was also pointed out by the learned counsel for the appellants that In this case no copy of F.I.R. or of G.D, was sent alongwith Panchayatnama when the dead body was sent to mortuary for post mortem examination as is clear from the Panchayatnama as well as from the statement of P.W. 2 S.I. Yadunath Singh and, therefore, no post mortem could be conducted on 9-2-1977 as Dr. R.K. Gupta P.W. 7 insisted on the copy of F.I.R. Ultimately copy of F.I.R. was sent and post mortem examination was held on 10-2-1977. It is true that nan sending of copy of F.l.R, with the inquest report was a serious lapse on the part of sub inspector Yadunath Singh but on that ground alone it could not be conclusively held that the F.I.R. was not in existence when inquest was held, As already pointed out above case had already been registered in the G.D. at 10.30 p.m. wherein names of all the accused persons had also been mentioned. It was also mentioned therein that Bhikam Singh P.W. 1 had himself received injuries. In the Panchayatnama also time of lodging of F.I.R. was mentioned as 10.30 p.m. The name of first informant was also disclosed therein. The inquest, commenced at 2 a.m. and was completed at 4 a.m. On the back of the first page of the inquest report there is also a recital that with regard to the murder of Babu Singh a written report of Bhikam Singh has been received at police station at 10.30 p.m. against PuttiLal Kachchi and other accused persons whereupon case has been registered at crime No. 16 under various sections of I.P.C. In the challan lash (Ex. Ka 5) and photo lash (Ex. Ka 6) also crime number was mentioned. As already pointed out above there is also a clear cut statement of Head Constable Sarfaraj Hussain P.W. 1 that special report of the case had been duly sent to the superior officers. He was not cross examined at all on this point and there is no reason to disbelieve him that special report had been despatched to superior officers in time. The learned Sessions Judge has dealt with this aspect of the matter in detail in his judgment and we do not find: any good reason to differ with him and no doubt is created in our mind that the F.I.R. of the case was lodged at the purported time.
31. On a careful examination of entire evidence on record we find that prosecution case against accused Inder Pal, PuttiLal, Babu Ram, Shiv Naraln and MewaLal is established beyond doubt. As far as accused Narendra Bahadur Singh and Lallu Singh are concerned, as an abundant caution we give them benefit of doubt. Both these appellants were alleged to be armed with guns, Neither any injured nor deceased sustained any fire arm injury. As per the statement of P.W. 3 Bhikam Singh these appellants on exhortation of PuttiLal made firing in air whereupon 'Baratis' and other persons present there started running here and there and then these two appellants caught hold of Babu Singh and assaulted him with kicks and fists. However, in the F.I.R. the allegation was that both these appellants caught hold of Bhikam Singh and other accused persons assaulted him, In his deposition before the Court P,W. 4 stated that these two appellants Lallu Singh and Narendra Bahadur Singh assaulted Bhikam Singh with butt ends of their guns, but this was an improvement made at the trial. Chhote Singh P.W. 4 though claimed that he had stated before the Investigating Officer that Lallu Singh and Narendra Bahadur Singh had assaulted Bhikam Singh but that fact is not contained in his statement recorded during investigation as admitted by the Investigating Officer and the witness could not explain why that fact was not recorded by the Investigating officer. In any view of the matter it appears to us to be most unnatural and improbable that if Bhikam Singh had been caught hold of by these two appellants he would have been left with only simple friendly injuries. Both these appellants were armed with guns and Bhikam Singh was their dire enemy and once they had caught hold of him he would not have been left with only superficial and minor injuries and no use of the weapons which these appellants carried would have been made. As regards the. incident which occurred inside the house of SheoLal again no specific role is assigned to these appellants. In the examination in chief Smt. Kusma stated that when she tried to. save Babu Singh she was assaulted with kicks and fists. However, in cross examination she stated that it was MewaLal who pushed her and caused injuries to her from the butt end of the gun. As already pointed out above, none of the injured or deceased had sustained any fire arm injuries. It is admitted case of prosecution that on the date of murder proceedings under Section 107/116 Cr.P.C. were pending between Bhikam Singh and accused Narendra Bahadur Singh and Lallu Singh also. Therefore, the possibility of their false implication alongwith real assailants is not completely ruled out and the circumstances appearing In the case create a reasonable doubt In our mind regarding the presence of these two appellants at the time of occurrence. In our opinion they deserve to get the benefit of doubt.
32. For the reasons stated above criminal appeal No, 625 of 1980 of appellant Inder Pal is dismissed. His conviction and sentence as recorded by the learned Sessions Judge are upheld, He is on bail, he shall be taken into custody forthwith and sent to Jail for serving out the sentence as awarded by the trial Court.
33. Criminal Appeal No. 626 of 1980 is allowed in part. While conviction and sentences of appellants PuttiLal, Babu Ram and Shiv Narain are maintained, that of appellants Narendra Bahadur Singh and Lallu Singh are set aside. Appellants Narendra Bahadur Singh and Lallu Singh are acquitted of the offences charged for. They are on bail. They need not surrender. Their bail bonds are cancelled and their sureties discharged.
34. Conviction of appellants PuttiLal, Babu Ram and Shiv Narain are maintained. They are on bail. They shall be taken into custody forthwith and sent to jail for serving out the sentences as awarded by the trial Court. C.J.M. concerned is directed to take appropriate steps to ensure compliance of this order.
35. Appeal filed by appellant MewaLal has already abated.